BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                               AB 2738
                                                                       

                      SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                              Senator Jerry Hill, Chair
                              2013-2014 Regular Session
                                           
           BILL NO:    AB 2738
           AUTHOR:     Assembly Committee on Environmental Safety and  
                       Toxic Materials
           AMENDED:    May 23, 2014
           FISCAL:     Yes               HEARING DATE:     June 25, 2014
           URGENCY:    No                CONSULTANT:       Rachel Machi
                                                           Wagoner
            
           SUBJECT  :    SAFE DRINKING WATER 

            SUMMARY  :    
            
           Existing law  : 

           1)Pursuant to the Safe Drinking Water and Toxic Enforcement Act  
             of 1986 (Proposition 65), provides for the regulation of  
             cancer causing chemical and reproductive toxicants,  
             specifically:

              a)   Provides that no person in the course of doing business  
                shall knowingly and intentionally expose any individual to  
                a chemical known to the state to cause cancer or  
                reproductive toxicity without first giving clear and  
                reasonable warning.  It also provides that no person shall  
                knowingly discharge or release those same chemicals into  
                any source of drinking water.

              b)   Prohibits any person who serves a notice of alleged  
                violation from filing an action for exposure against the  
                alleged violator or recovering from the alleged violator  
                in a settlement any payment in lieu of penalties or any  
                reimbursement for costs and attorney's fees, under limited  
                conditions. 

              c)   Requires, within 14 days after service of the notice,  
                the alleged violator to demonstrate that they have  
                corrected the alleged violation and have paid a civil  
                penalty in the amount of $500.










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           2)Pursuant to the state and federal Safe Drinking Water Act  
             (SDWA):

              a)   Authorizes, pursuant to the federal SDWA, the United  
                States Environmental Protection Agency to make funds  
                available to drinking water systems to finance  
                infrastructure improvements.

              b)   Establishes the Safe Drinking Water Small Community  
                Emergency Grant Fund and authorizes the Department of  
                Public Health (DPH) to assess an annual charge to  
                applicants for State Drinking Water State Revolving Fund  
                (SDWSRF) loans to be deposited in this fund in lieu of  
                interest that would otherwise be charged on SDWSRF loans.   


           3)Requires that home water treatment devices meet DPH standards  
             for those devices offered for sale which claims to reduce  
             contaminants or makes other health-related performance  
             claims.  Current law allows the manufacturer to provide  
             third-party certification to DPH of the efficacy of the  
             device.  
            
            This bill  contains technical or noncontroversial revisions to  
           hazardous materials and safe drinking water provisions of the  
           statutes.  Specifically,  this bill  : 

           1)Modifies Proposition 65 as follows:

              a)   Clarifies the provisions of Proposition 65 that require  
                the noticing party to inform the alleged violator of his  
                or her right to cure the violation.  

              b)   Specifies that the party alleging a Proposition 65  
                violation must send the notice of special compliance  
                informing an alleged violator of the right to correct the  
                violation, if any of the alleged violations in the 60-day  
                notice are subject to the right to cure.

           2)Modifies the use of funds generated from the fees paid by  
             applications for loans from SDWSRF as follows:

              a)   Authorizes the use of the administrative fee charged to  









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                recipients of SDWSRF loans to reimburse DPH for the costs  
                of reviewing and approving applications, and the loan  
                disbursement fee to reimburse DPH for all other costs. 

              b)   Authorizes DPH to annually adjust the fee schedule.

           3)Removes duplicate references to the American National  
             Standards Institute (ANSI) for the DPH Point-of-Use Water  
             Treatment Device Certification.

            COMMENTS  :   
           
            Need for the bill  .  This bill provides for a series of  
           technical, corrective, and non-substantive modifications to the  
           hazardous materials and drinking water laws.  The issues  
           addressed in this bill were the result of legislation passed in  
           2013 that include AB 227 (Gatto) related to Proposition 65, AB  
           21 (Alejo) related to emergency drinking water grants, and AB  
           119 (Assembly Environmental Safety and Toxic Materials  
           Committee (ESTM) related to point-of-use water treatment  
           devices.

            Proposition 65, AB 227 (Gatto), Chapter 581, Statutes of 2013  .   


           AB 227 changed the enforcement provisions of Proposition 65 by  
           limiting recovery by private citizen enforcement action for  
           specified types of exposure to chemicals causing cancer or  
           birth defects or other reproductive harm in those circumstances  
           when failure to provide clear and reasonable warning has been  
           remedied and a penalty has been paid.

           The technical amendments in this bill were suggested based on  
           an initial implementation of AB 227 by the California  
           Department of Justice.  

           The proposed amendment clarifies that the noticing party must  
           immediately inform the alleged violator of the right to cure  
           the violation, and not wait until after sending the 60-day  
           notice.  The second amendment to Proposition 65 makes it clear  
           that the noticing party must send the notice of special  
           compliance informing an alleged violator of the right to cure  
           if  any  of the alleged violations in the 60-day notice are the  









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           specific types of exposures subject to AB 227.  Leaving the  
           current statutory language in place creates a potential  
           unintended loophole by letting the noticing party allege at  
           least one violation that is not subject to AB 227 to avoid the  
           entire process.
           
            Safe Drinking Water Small Community Emergency Grant Fund, AB 21  
           (Alejo), Chapter 628, Statutes of 2013  . 
            
            AB 21 established the Safe Drinking Water Small Community  
           Emergency Grant Fund which is financed from a fee charged to  
           loan recipients in lieu of a similar amount of interest.  The  
           fees collected are provided to disadvantaged communities in the  
           form of grants to improve drinking water safety.  AB 2738  
           provides that fees collected may be used for prescribed  
           administrative costs of providing assistance under these  
           provisions, to the extent consistent with federal law.

           It is unclear how this amendment to the statute would be  
           integrated with the statutory changes made in the budget  
           trailer bill to transfer the drinking water program from DPH to  
           the State Water Resources Control Board (SWRCB).  Because this  
           bill will be enacted after the trailer bill, it may  
           inadvertently make changes to the Fund that SWRCB is attempting  
           to integrate into the overall restructuring of the Drinking  
           Water Program.  It may make sense to make this change to the  
           Fund next year after the reorganization of the Drinking Water  
           Program is complete.

            An amendment is needed  to strike this provision from the bill.

            Certification of Water Treatment Devices, AB 119 (ESTM),  
           Chapter 403, Statutes of 2013  .  

            AB 119 provided that a device may be sold, provided it meets  
           the ANSI standard or it had previously been approved by the  
           DPH.  The requirements of Health and Safety Code Section 116845  
           include the ANSI standards as well as alternative requirements  
           for previously approved devices. 

           The current inclusion of the ANSI requirement in addition to  
           the posting on the DPH web page duplicates the requirements  
           that must be met in order to be placed on the DPH website.  The  









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           provisions of AB 2738 make it clear that previously approved  
           devices would be allowed to remain on the DPH website and  
           therefore be authorized for sale in California.

            
           SOURCE  :        Author  

           SUPPORT  :       None on File
            
           OPPOSITION  :    None on File